Citation Nr: 1301853
Decision Date: 01/16/13 Archive Date: 01/23/13
DOCKET NO. 09-22 248 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady, Esq.
ATTORNEY FOR THE BOARD
T. M. Gillett, Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to November 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which, in pertinent part, granted entitlement to service connection for PTSD, assigning an initial rating of 30 percent, effective February 11, 2008. The Veteran subsequently appealed for an earlier effective date for the grant of service connection for PTSD and for a higher initial rating.
In an April 2011 Decision and Remand, the Board granted an earlier effective date of November 17, 2000, for service connection for PTSD. As the Veteran has not appealed this matter, the issue of an earlier effective date for service connection for PTSD is no longer in appellate status and is not before the Board. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012).
In the April 2011 Decision and Remand, the Board remanded the issue on appeal for further development. The Board also referred a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) to the RO for development. In a September 2012 rating decision, the RO granted a higher initial rating of 70 percent for PTSD, effective November 17, 2000, and also granted entitlement to TDIU, effective November 17, 2000. After completion of this development by the RO, the issue of an initial rating in excess of 70 percent for PTSD was returned to the Board.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
FINDING OF FACT
By itself, the Veteran's PTSD is not characterized by total social and occupational impairment.
CONCLUSION OF LAW
The criteria for a disability rating of 100 percent rating for PTSD are not approximated. 38 U.S.C.A. § 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Introductory Matters
In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App.").
The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A.
§ 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (holding that the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. The Veteran originally received VCAA notice in February 2008. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473.
The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA psychiatric examinations in August 2004, October 2008, and February 2012.
This case was remanded in April 2011 for the Veteran to undergo a VA psychiatric examination, which was accomplished in February 2012. The RO also obtained additional VA treatment records and records from the Social Security Administration (SSA). The RO therefore complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
The Veteran has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R.
§ 3.655 (2012), all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).
The Merits of the Claim
Given the RO's granting of a 70 percent disability rating for PTSD effective November 17, 2000, the issue before the Board is whether the disorder may be evaluated as 100 percent disabling for the entirety of the period in question. This is irrespective of the RO's granting of a TDIU. See Acosta v. Principi, 18 Vet. App. 53, 61 (2004) (determining that although claimant was already rated for TDIU, the Board was required to discuss the possibility of a 100-percent schedular rating because of the additional protections against reduction of schedular ratings in 38 C.F.R. § 3.343). The Board presently finds that the preponderance of the evidence is against the claim, and it will be denied.
Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.
38 C.F.R. § 4.3.
The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).
The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).
In ascertaining the competency of lay evidence, the Court has generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. at 303 (concerning varicose veins); see also Jandreau, 492 F.3d at 1372 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").
The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. Under these criteria, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
However, symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).
The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association ("DSM-IV"). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning ("GAF") scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual.
Under the DSM-IV, GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed person avoids friends, neglects family and is unable to work). GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).
Applying these criteria to the facts of the case, the Board finds that the symptoms of the Veteran's PTSD do not support findings warranting a 100 percent rating for the entirety of the appellate period. Although there is no question that the psychiatric disorder results in occupational and social impairment in "most" areas, the Veteran does not have "total" social impairment from PTSD alone. The Veteran maintains both social and familial relationships, albeit limited; and is able to care for himself in activities of daily living and personal hygienic care. He is therefore not totally isolated in the community.
The Veteran receives mental health treatment at VA facilities, where he attends occasional psychotherapy sessions. In an October 2000 VA treatment record, a VA examiner diagnosed the Veteran as having PTSD, due to non-combat related stressors. During an interview, the Veteran reported experiencing decreased energy, decreased interest, decreased function, decreased concentration, and decreased motivation. However, the Veteran denied any homicidal or suicidal ideation. The VA examiner noted that the Veteran was casually dressed. The VA examiner indicated that the Veteran's associations were slow and negative. The VA examiner stated that the Veteran's affect was anxious, sad, and depressed. Significantly as it bears on the rating schedule, the VA examiner noted no perceptual or intellectual deficits, and found the Veteran's judgment and insight were intact. Apart from PTSD, the VA examiner also diagnosed a recurrent major depressive disorder with psychotic features, panic disorder with agoraphobia, and alcohol dependence in remission. The GAF score was 48.
.
In a January 2001 VA treatment record, the Veteran reported that he was experiencing less symptoms of irritability, agitation, and depression while taking his medication - in this respect, the Veteran's report of such less severity also suggests that he was able to perform such activities of daily living as self-care. During an interview, the Veteran reported experiencing decreased energy, decreased interest, decreased function, decreased concentration, and decreased motivation. However, the Veteran again denied any homicidal or suicidal ideation. While the VA examiner noted that the Veteran's behavior showed some decrease in psychomotor activity and speech and an increase in anxious gestures since the previous session, he noted that the Veteran was nonetheless alert and oriented in all three perceptual spheres.
Significantly as it bears on indicating the Veteran was not totally impaired by PTSD, while the VA examiner indicated that the Veteran's associations were somewhat slow, "negative" and his affect was anxious and depressed the Veteran showed no perceptual or intellectual deficits, and found the Veteran's judgment and insight to be intact.
The record then continued to demonstrate that the Veteran was able to continue self-care. In a June 2002 VA treatment record, the Veteran reported that he was taking psychiatric medication and that he had not experienced recent psychotic exacerbations and difficulty sleeping. The VA examiner noted that the Veteran was alert, his speech was clear, coherent, and relevant, his thought process was organized, his cognitive functions were adequate, and that his insight and judgment were clear. The VA examiner indicated that the Veteran's affect was constricted, and that the Veteran did not exhibit signs of acute psychotic process.
December 2002 VA treatment records indicate that the Veteran was admitted for both detoxification related to alcohol abuse and agitated behavior. In a specific December 2002 VA treatment record, a VA examiner noted that the Veteran was alert, but confused. Significantly it was during this period of alcoholic detoxification that the Veteran was hallucinating picking unseen objects out of the air and off the floor. However, after such treatment, in December 2002 VA treatment record, a VA examiner indicated that the Veteran was no longer confused or hallucinating following treatment.
During the early rating period, the Veteran was shown to have maintained familial, although selective contact. In an August 2004 VA social survey report, the Veteran stated that he had been married twice, and had a daughter and two grandchildren with whom he maintained contact. The Veteran indicated that he also had an adoptive daughter who did not have anything to do with him. Although the Veteran did not explain the reasons for his estrangement from his adoptive daughter, he indicated that he had experienced personal problems due to her drug abuse.
Although the Veteran indicated that he had an episode of dangerous behavior towards others, this incident appears to have been linked to non-PTSD causes. The Veteran stated that his second marriage ended when he caught his wife with another man. The Veteran stated that he subsequently chased after his wife's boyfriend with his truck in a high-speed chase going 90 miles per hour. The Veteran stated that he would have killed the man if he had caught him. However, apart from this incident, the Veteran stated that he had friends, but they all worked so he did not spend much time with them. The Veteran indicated that he visited every day with a 72-year-old woman friend with whom he would have coffee every morning. After her visits, he stated that he would spend the day doing crossword puzzles or watching television. As to the latter, the fact that the Veteran was able to seek and complete crossword puzzles, of whatever complexity, certainly suggests that his cognition was active, notwithstanding PTSD.
The Veteran reported that he was able to go for walks, although he would have a startle response when people walked behind him and jump if someone tapped him on the shoulder. He nonetheless showed continued self-care by indicating that he made meals for himself with a gas stove in his apartment. The Veteran admitted that he was alcoholic and that the disorder currently was in remission. Indeed, the Veteran stated that the medications he was taking for PTSD were controlling his symptomatology adequately. The Veteran stated that he worked most recently for the VA medical center as a housekeeper, but was fired due to unexcused absences related to his alcohol dependence. The Veteran stated that he no longer had a driver's license due to a felony DWI conviction, so his only form of transportation other than walking was his bicycle. The Veteran stated that most of the places he wished to go were within biking range. The VA social worker indicated that the Veteran's drinking was related to his attempts to control the nightmares, flashbacks, and anxiety related to his PTSD. The VA social worker reported that the Veteran experienced severe social impairment and that his socialization was minimal - however, the VA social worker opined that the Veteran had the ability to manage his own financial affairs.
In an August 2004 VA psychiatric examination report, the Veteran admitted that he had an "alcohol problem, but stated that he had not had a drink since January 2004. The Veteran reported being treated for depression, anxiety, schizophrenia, and "psychotic symptoms." The VA examiner noted that the Veteran was very difficult to interview as he appeared to be extremely wary and was quite resistant to providing answers to specific questions regarding his symptoms and the basis of his claim for service connection. The Veteran rejected providing information that he believed that he had already provided to the VA social worker and told the VA examiner to either look in the file or computer record for such information. The VA examiner noted that the Veteran had significant paranoid and persecutory thinking, but that he also conveyed an attitude of "entitlement" throughout the interview..
The Veteran stated that he was "paranoid a lot" and that he tended to overreact to sounds. The Veteran also indicated that he experienced "all kinds of stuff," but would not describe these difficulties, instead referring the VA examiner to the computer file he believed would contain the information. The Veteran stated that he had weird dreams and flashbacks, but did not immediately describe the contents of such experiences. However, and then indicative of his social/familial functioning, the Veteran denied experiencing sleep problems and stated that he had a good relationship with all of his family members, except for his two ex-wives. He stated that he had "quite a few" friends, but did little other than sit at home, for a walk, or have coffee with a neighbor. The Veteran became resistant to discussing daily routines and activities, and refused to answer questions regarding his activities of daily living. The Veteran begrudgingly stated that he did not go to movies and experienced no difficulty with going to restaurants, except that he did not go far for fear of having a seizure due to an unrelated disorder. When asked about his traumatic experiences, the Veteran indicated that he felt dealing with VA employees to be traumatic as it was the same old "b.s." each time. The Veteran told the VA examiner that he did not see a need for the present examination. The Veteran reported experiencing events from service in Vietnam during waking and sleeping hours, but could not provide rough estimates of how often this happened or under what circumstances. The Veteran stated that he experienced visual hallucinations involving seeing members of the Viet Cong in his room or at his windows. The Veteran also indicated that he heard voices, but could not recall what the voices said or what they sounded like.
The August 2004 VA examiner noted that the Veteran's hygiene was adequate, if somewhat marginal. The VA examiner reported that the Veteran experienced persecutory and paranoid delusions, as well as ideas of reference. The VA examiner noted that the Veteran reported experiencing intermittently circumstantiality, circumlocution, flight of ideas, and associational and magical thinking throughout the interview. The VA examiner stated that the Veteran was remarkably defensive, contrary, and emotionally aloof throughout the session, and reiterated that his personal hygiene was marginal. The VA examiner indicated that the Veteran seemed to experience anger and frustration regarding his dealing with VA, but did not accept any responsibility for the obstacles he placed in the way of his success in then seeking service connection.
As it suggests that the Veteran may have then been misrepresenting his symptoms, the August 2004 VA examiner stated that while the Veteran's mood was dysphoric, his affect anxious and depressed, these were not always consistent with the content of his speech or discussion. However, the VA examiner indicated that the Veteran was oriented to time, place, and person, and that his general fund of information appeared consistent with his estimated intelligence.
Significantly as it reflects the effects of PTSD on his intellectual functioning and his activities of daily living, the VA examiner noted that the Veteran's executive cognitive functions were impaired, and his capacity for abstract thinking was quite limited, but was probably consistent with his intellect which was in the low average to average range.
The Veteran's remote memory appeared to be somewhat limited, but the examiner noted that the Veteran's "oppositionality," instead of actual memory problems, might have led to incorrect answers during the interview. The VA examiner reported that both the Veteran's short term and immediate memory seemed compromised by anxiety, lack of concentration, and lack of investment in the assessment. The Veteran was nonetheless able to mobilize cognitive ability to recite serial sevens backwards, which he accomplished very slowly with one error. The Veteran's insight was decidedly lacking and he appeared to have a very concretistic and overdetermined belief regarding the role of trauma in his problems. The VA examiner indicated that the Veteran's judgment appeared severely impaired. The VA examiner indicated that the Veteran experienced periodic suicidal ideation, but the Veteran stated that this was true of everyone. The Veteran specifically denied homicidal ideation. The diagnoses, in part, were (Axis I) PTSD, alcohol dependence in remission (by the Veteran's report), rule-out psychotic disorder NOS; (Axis II) rule-out borderline personality disorder; and (Axis IV) problems related to other social/environmental factors. The GAF score was 55.
In an October 2008 VA social survey report, the VA examiner noted that the Veteran was focused and cooperative during the interview. The Veteran stated that he had occasional nightmares - possibly twice per week and then not reoccurring for a couple of months. The Veteran stated that he once woke, looked out of his window, and saw two "Viet Cong midgets who were dressed like Rambo." The Veteran indicated that he did not like to walk near people on the street when he was alone and avoided crowds as much as he could.
As to social contact, the Veteran stated that he spent most of the day alone in his apartment, watching television, doing crossword puzzles, or playing hand-held games. However, the Veteran indicated that he had a good friend who also served in Vietnam with whom he spoke on the telephone daily, and another friend who drove him to the store and to his appointments. The Veteran stated that he had two adoptive daughters from his two marriages and that these daughters had cut off contact with the Veteran. The Veteran reported being hurt by their lack of contact. However, The Veteran also indicated that he had regular contact with his natural daughter from his first marriage.
In an October 2008 VA psychiatric examination report, a VA examiner noted that the Veteran was recently treated for alcohol-related problems on an inpatient basis in December 2007, but that the Veteran reported having his last drink in May 2008. The VA examiner indicated that he did not have any difficulty interviewing the Veteran except when he asked the Veteran for specifics regarding his presenting symptomatology. The Veteran reported experiencing flashbacks regarding an incident in when a friend was killed, but acknowledged that he was not present during that actual incident. The Veteran also reiterated the incident about his perception of the two Viet Cong soldiers dressed as Rambo at his window, but stated that he did not know if this incident was a flashback, a dream, or a hallucination.
The Veteran otherwise denied excessive or uncontrolled anger or emotional overreactivity and, while indicating that he was depressed, also commented that others with whom he had spoken told him that he jokes around to fight his depression. Although his personal hygiene was manifestly poor, the Veteran nonetheless indicated that he cared for his home environment and experienced no difficulty maintaining his emotional and personal hygiene. The Veteran described his sleep as disturbed, but noted that he slept for about nine hours per night, waking up three to four times per night to urinate. The Veteran first stated that his dreams were not about Vietnam and did not awaken him; however, the Veteran quickly contradicted himself. He described having service-related dreams about events that did not happen, such as having his base overrun by the enemy. He also stated that he had dreams about seeing an enemy soldier executed by fellow service members. The Veteran had difficulty explaining his previous denial and subsequent affirmation of service-related dream content.
The Veteran stated that his contact with his family was infrequent, but indicated that he got along with his family. The Veteran stated that his family members did not live close to him and that he did not have a convenient way to go see them, but that he would participate in family gatherings when he could attend them. The Veteran indicated that he had "quite a few" friends, but had close relationships with only two of them. The Veteran stated that he had not gone to a movie theater in years and that he did not watch movies or films at home. The Veteran indicated that he rarely went to any restaurant and would have to face out if he did to see what was happening around him. The Veteran stated that he assembled model cars as well. The Veteran specifically denied suicidal and homicidal ideation.
The October 2008 VA examiner noted that the Veteran's social and interpersonal functioning appeared to be very limited and, at least, moderately impaired. While the VA examiner opined that the Veteran's level of functioning had marginally declined since the August 2004 VA medical examination, the Veteran seemed much more cooperative and less embittered than as described by the August 2004 examiner. The VA examiner noted that the Veteran was somewhat bedraggled and haggard in appearance, that his personal hygiene was marginal, that his mood was dysphoric, and that his affect was anxious and depressed.
However, the VA examiner indicated that the Veteran's speech was directed and coherent. The VA examiner noted that there did not appear to be any disturbances in expressive or receptive language. The VA examiner stated that the Veteran might have had visual hallucinations pertaining to seeing Viet Cong in his room or at his windows, but that the Veteran no longer reported hearing voices or experiencing persecutory or paranoid delusions.
Significantly, the VA examiner noted that the Veteran's thought processes appeared to be organized as compared to what was previously seen, although the Veteran's thought content appeared to be seemingly bizarre or eccentric. The VA examiner noted that the Veteran was oriented in time, place, and person, but also noted that the Veteran's general fund of information appeared significantly deficient as was his awareness of current events. The VA examiner indicated that the Veteran's executive cognitive functions were impaired and his capacity for abstract thinking was limited, but was probably consistent with his intellect - as had been noted in a previous examination. The Veteran's remote, immediate, and long-term memory were impaired as well. The Veteran's insight was decidedly lacking and the Veteran appeared to have a concretistic and overdetermined belief regarding the role of trauma in his current problems. The Veteran's judgment appeared to be severely impaired.
The VA examiner concluded that the Veteran's social, interpersonal, and (historically) occupational functioning each appeared to be at least moderately impaired and, while the Veteran was more stable from a clinical perspective, his psychosocial functioning and underlying mental health appeared to remain unchanged. The VA examiner stated that the Veteran might be more distressed than he was in 2004 and that the Veteran had not experienced any periods of remission from his PTSD symptomatology. The VA examiner diagnosed (Axis I) PTSD, alcohol dependence (in remission by self-report), (Axis II) personality disorder not otherwise specified with borderline and schizoidal features, (Axis IV) social isolation, and military/combat trauma. The GAF score was 49.
In a January 2009 VA treatment record, a VA examiner the Veteran reported going with a friend to Tennessee to see other friends over the holidays. The Veteran indicated that he did drink "a few for the holidays, nothing major though." The Veteran reported experiencing nightmares, increased startle response, increased vigilance, and hypervigilance. The Veteran stated that he did not want to be involved in group therapy because he believed that it would make his condition worse. The Veteran denied any homicidal or suicidal ideation.
The January 2009 VA examiner noted that the Veteran was dressed appropriately in casual clothing, and was both neat and clean in appearance. The VA examiner found the Veteran to be amiable, friendly, and cooperative. The VA examiner wrote that the Veteran spoke at a normal rate and rhythm and, although the Veteran appeared to be mildly depressed, his mood was much improved from previous meetings. The VA examiner indicated that the Veteran's affect was mildly constricted, but was also much improved from previous encounters. The VA examiner found that the Veteran's insight and judgment were both good, and that the Veteran exhibited no signs of overt psychiatric disturbances. The VA examiner noted that the Veteran's cognitive processes were intact. The VA examiner diagnosed PTSD, a recurrent and mild major depressive disorder with psychotic features, and alcohol dependence. The GAF score was 43.
In a February 2012 lay statement, the Veteran indicated that he still had nightmares about seeing two little men dressed in full combat gear standing outside his second floor window. The Veteran wrote that he had about three friends and a few acquaintances, but was only close to one person. The Veteran indicated that he stayed at home unless his friend drove him to the grocery store to shop or to the VA for an appointment.
In an February 2012 VA medical examination report, the Veteran stated that he had not experienced any changes to his occupational history or any behavioral changes since the October 2008 VA psychiatric examination report. After reviewing the claims file and interviewing the Veteran, and with specific reference to the rating criteria as set out in 38 C.F.R. § 4.130, the VA examiner reported that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. The VA examiner indicated that the Veteran psychiatric symptomatology included depressed mood, anxiety, suspiciousness, flattened affect, impairment of short and long-term memory, circumstantial, circumlutory, or stereotyped speech, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner also indicated that the Veteran was disenchanted and disgruntled.
However, the February 2012 VA examiner stated that some of the terminology used by the Veteran during the interview and in the February 2012 lay statement was inconsistent with the Veteran's perceived intellect and vocabulary. Significantly as it bears on the Veteran's credibility, the VA examiner also noted that the Veteran seemed to over-endorse symptoms while denying others, making it impossible to gain a definitive understanding of the Veteran's symptoms and their severity. The VA examiner reported that it was clear that the Veteran suffered significant symptoms that impaired his social, emotional, and related functioning. The VA examiner indicated that the Veteran did not appear employable due to both his psychiatric illnesses, to include PTSD with associated depression, and his apparent physical conditions. The VA examiner stated that the Veteran was fearful of other people and did not get along with them. The VA examiner also reported that the Veteran lacked concentration and motivation, and was generally emotionally dysfunctional. Considering the difficulty with assessing the Veteran's symptomatology, the VA examiner stated that it would not be possible to identify the Veteran's historical levels of impairment or functioning without resorting to speculation. After reviewing the current evidence, the VA examiner diagnosed (Axis I) PTSD, a single episode of major depression with psychotic features, alcohol dependence in sustained remission, (Axis IV) combat trauma, prolonged alcohol abuse, and chronic medical problems. The GAF score was 45.
The record therefore shows that while the Veteran is occupationally impaired, he nonetheless maintains social contact - both with some family members and friends. Although the VA examiner noted that the Veteran is not able to work, it is significant that the assessment took into account both PTSD and other disorders. Again, the Veteran has also demonstrated non-total cognitive ability - he is able to read; participate in conversations; and is able to satisfactorily care for himself by cooking his own meals; and has displayed satisfactory albeit minimum hygiene.
The Veteran is competent to comment on the psychiatric symptomatology he has experienced as a layperson. See Layno, 6 Vet. App. at 465. However, in the October 2008 VA psychiatric examination report, the October 2008 VA examiner noted that the Veteran denied having dreams about service and then subsequently indicated that he did experience such dreams. When questioned, the Veteran could not offer an explanation for this reversal. In the February 2012 VA medical examination report, the February 2012 VA examiner noted that the Veteran over-endorsed having certain symptoms while denying the presence of others, making it impossible for the VA examiner to gain a definitive understanding of the Veteran's symptoms and their severity. The Board notes that the inconsistencies in the Veteran's report of his lay symptomatology brings his credibility as a lay witness into question. See Caluza, 7 Vet. App. at 511-512. However, both the October 2008 and February 2012 VA examiners diagnosed the Veteran as having PTSD with symptomatology more nearly approximating that required for the currently assigned 70 percent rating in spite of the noted inconsistencies. Moreover, the Veteran has consistently provided consistent accounts of difficulty with socialization resulting from his diagnosed PTSD which do not when viewed as credible amount to a total social impairment.
For the entire initial rating period under appeal, the Veteran's PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.30; Mauerhan, 16 Vet. App. at 436. However, at no time has he shown symptoms warranting a 100 percent rating, specifically symptomatology more nearly approximating total occupational and social impairment. Id. Although the Veteran is isolated socially, the Veteran has managed to maintain at least one close friendship throughout the entire initial rating period under appeal. The Veteran also has maintained good relationships with his family members, outside of his ex-wives and adopted daughters. The ability to maintain such relationships indicates a greater level of social functioning than the total social impairment contemplated by the 100 percent rating under Diagnostic Code 9411.
During the initial rating period, the Veteran reported experiencing some suicidal ideation, but has not reported making any attempts to harm himself. The Veteran also reported chasing his ex-wife's boyfriend in his truck with the intent of killing him; however, the Veteran has not endorsed experiencing homicidal ideation outside of that isolated incident which was apparently occasioned by non-PTSD factors. Medical personnel have not diagnosed the Veteran as being a danger to himself or others. Although the Veteran's personal hygiene was described as marginal during the initial rating period, the evidence indicates that the Veteran is capable of performing his activities of daily living. The Veteran has been noted to have difficulties with memory, but has not indicated that he experiences memory loss regarding the names of close relatives or own name. Although the Veteran has notably circumstantial, circumlutory, or stereotyped speech, the evidence does not indicate that the Veteran has experienced gross impairment in thought processes or communication. Moreover, although VA examiners have noted and the Veteran has reported experiencing occasional nightmares and hallucinations, the Veteran has not reported experiencing persistent delusions. The record shows that the Veteran has displayed hostility and frustration, especially with VA examiners, but the record does not indicate that the Veteran's behavior consistently has been grossly inappropriate in a general fashion. VA examiners have also indicated that the Veteran is oriented to time and place. As such, the symptomatology expressed by the Veteran does not more nearly approximate the total occupational and social impairment contemplated by the 100 percent rating under Diagnostic Code 9411. See id.
During the initial rating period, the Veteran's GAF scores have fluctuated between 35 and 48. As noted above, GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication or major impairment in several areas. GAF scores ranging between 41 and 50 are assigned when there are serious symptoms. Although GAF scores are one of the medical findings employed in a rating determination, the score assigned does not determine the disability rating VA assigns. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Board finds that there is no evidentiary basis upon which to assign a rating in excess of 70 percent and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505.
Extraschedular Consideration
In a September 2012 rating decision, the RO granted the Veteran's claim for entitlement to TDIU, finding that the Veteran was unable to remain employed due to his service-connected PTSD. However, the grant of entitlement to TDIU does not excuse the Board's obligation to assess whether an extraschedular evaluation not based on unemployability is applicable when it is raised by the claimant or by the facts because of the additional protections afforded to total disability ratings not based on individual unemployability. See Acosta, supra.
The Board has considered whether referral for an extraschedular rating in excess of the 70 percent schedular rating is appropriate under the provisions of 38 C.F.R.
§ 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
As described above, the manifestations of the Veteran's PTSD, including near-continuous depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships, are contemplated by the schedular criteria set forth in the General Rating Formula for Mental Disorders. No examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order.
ORDER
An initial rating in excess of 70 percent for PTSD is denied.
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VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs